James Doane at Bush Garden where his mother started waiting tables in the 1960s.
By James K. Doane
In 1967, the United States Supreme Court, in Loving v. Virginia, unanimously struck down a Virginia law that banned marriage between persons classified as “white” and persons classified as “colored.” Virginia residents Richard Loving, a white man, and Mildred Loving, an African and Native American woman, had been convicted of violating Virginia’s Racial Integrity Act of 1924, which classified a white person as one “who has no trace whatsoever of any blood other than Caucasian.”
The Japanese American Citizens League (JACL) filed an amicus brief in support of the Lovings. JACL’s general counsel William Marutani, from Kent, Washington, addressing the Supreme Court, challenged the veracity of whiteness in a melting pot nation, and Virginia’s justification for its law—“purity of public morals,” “preservation of racial integrity,” “racial pride,” and “to prevent a mongrel breed of citizens.” Marutani focused on the impact of anti-miscegenation laws on smaller minority groups such as Japanese Americans. Asked by Chief Justice Earl Warren about this, Virginia’s lawyer replied, “You cannot inflate this minority group into constitutional significance.”
Was that the lesson America had learned from the Japanese American incarceration cases? American citizens Gordon Hirabayashi, a University of Washington student, Fred Korematsu, a welder in Los Angeles, and Min Yasui, a lawyer in Oregon, had lost their Supreme Court challenges as three of the 120,000 Japanese Americans incarcerated during World War II following President Franklin D. Roosevelt’s Executive Order 9066. Not to put too fine a point on it, but persons having just a trace, as little as 1/16th of Japanese blood (increased from 1/32th), were potentially subject to incarceration.
Although discredited, these Supreme Court cases remain on the books as political tools in search of an emergency. Wisconsin Supreme Court Justice Rebecca Bradley compared Japanese American incarceration during oral arguments on Zoom to Wisconsin’s COVID-19 stay-at-home order, calling it “tyranny” before the Court’s 4-3 decision against the order.
Presumably, Justice Bradley was aware that lower federal courts reversed the convictions of Hirabayashi, Korematsu, and Yasui in the 1980s after finding that the United States Department of Justice had withheld evidence of the lack of military necessity, and that Japanese Americans had been incarcerated based on their ancestry.
Limitation of certain legal rights and privileges exclusively to persons classified as white of course also had widespread consequences for many Asian immigrants such as the Japanese, Chinese, Koreans, Filipinos, Indochinese, Indians, Pacific Islanders, and other would-be immigrants not classified as “white” from around the world.
The Naturalization Act of 1790 generally restricted citizenship to “any alien, being a free white person” who had been in the United States for two years. A second racial category was established in 1870 for “aliens of African nativity and persons of African descent.” The Chinese Exclusion Act of 1882, the Scott Act of 1888, the 1906 Immigration Act, the 1907-1908 Gentlemen’s Agreement, and the Immigration Act of 1924 were just some of the federal immigration laws and official acts that disparately impacted Asians.
The Chinese Exclusion Act was abolished in 1943, and special legislation during the American occupation of Japan allowed non-quota immigration by Japanese war brides and minor children of American soldiers (while many state laws still criminalized mixed marriages). Race based restrictions on naturalization were finally abolished in 1952, and national origin quotas for immigration were abolished in 1965.
These anti-Asian immigration laws dating back two centuries did not just magically appear or disappear as if by miracle. The ugly incidents we are increasingly hearing about these days are not new. Historically, similar incidents went unchecked and, in many cases, were supported or tolerated by the authorities. Sound familiar? The old fear mongering about the yellow peril has mutated into a virus.
Asians in America are sometimes regarded as timid and safe targets. Images of Bruce Lee kicking or Jeremy Lin or Rui Hachimura dunking on their opponents may help counter that assumption. But Asians, when united with each other and similarly situated groups, can figuratively kick and dunk to counter the upswing in hate speech and violence aimed at them because of COVID-19, tensions with China, and the long shadow of white supremacy exposed in Loving. In the courtroom, Marutani kicked and dunked with the best of them. Let us honor his example by emulating it.
James K. Doane is a Seattle lawyer admitted to practice in 1980.